BACKGROUND

[1] On April 25, 2018, in Decision No. LET-A-30-2018 , the Canadian Transportation Agency (Agency) initiated an inquiry in respect of numerous disruptions to flights operated by Sunwing at the Toronto Airport between April 14 and 18, 2018. The inquiry was initiated in light of multiple complaints from passengers and media reports. On May 2, 2018, in Decision No. LET-A-31-2018, the inquiry was expanded to include disruptions to Sunwing’s flights at the Montréal Airport on the same dates.

[2] In Decision No. LET-A-30-2018, the Agency stated that its inquiry will consider whether Sunwing properly applied the terms and conditions of carriage set out in its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) No. 3 (Scheduled International Tariff) and its Charter Tariff Containing Rules, Rates and Charges Applicable to the Charter of Aircraft for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) No. 1 (Non-Scheduled International Tariff), and whether those terms and conditions are reasonable, in respect of:

flight delays;

flight cancellations;

tarmac delays; and,

lost, damaged, and delayed baggage.

[3] In Decision No. LET-A-31-2018, the Agency also stated that complaints that were filed regarding the flights covered by the inquiry will be addressed through the inquiry, and that complaints regarding flights outside the scope of the inquiry will be handled through the Agency’s usual dispute resolution processes. In total, 579 complaints filed with the Agency by passengers on the affected flights have been included in the scope of this inquiry.

[4] The Agency appointed Jean-Michel Gagnon as Inquiry Officer, pursuant to subsection 38(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA). On August 20, 2018, the Inquiry Officer provided his draft report to the Agency, and on October 25, 2018, he submitted a final version of the report.

[5] On October 15, 2018, in Decision No. LET-A-68-2018, the Agency sought additional information from Sunwing by way of interrogatories in order to complete the evidentiary record. After being granted an extension, Sunwing responded to the interrogatories on November 2, 2018. On November 6, 2018, Sunwing provided revised responses to two of the questions. On December 24, 2018, in Decision No. LET-A-93-2018, the Agency found that a limited amount of business information that was provided by Sunwing will be treated as confidential.

REASONABLENESS OF THE TARIFF

[6] On May 23, 2018, the Transportation Modernization Act, S.C., 2018, c. 10 received Royal Assent. Among other things, it amended the CTA to give the Agency a mandate to make air passenger protection regulations that will establish minimum air carrier obligations to passengers in areas such as tarmac delays, flight disruptions and lost or damaged baggage. Proposed regulations were pre-published in the Canada Gazette, Part I, on December 22, 2018. Given these developments, the Agency stays its assessment of the reasonableness of the provisions contained in Sunwing’s Scheduled International Tariff and Non-Scheduled International Tariff (found in Appendices A and B, respectively).

APPLICATION OF THE TARIFFS

[7] This determination addresses the following issue: did Sunwing properly apply the terms and conditions set out in its Scheduled International Tariff and its Non-Scheduled International Tariff, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?

[8] Pursuant to subsection 38(2) of the CTA, the Agency adopts the Inquiry Officer’s report. That report and the information provided by Sunwing in its responses to the Agency’s interrogatories constitute the evidentiary basis for this determination.

ANALYSIS

[9] It is clear from the record that the disruptions to Sunwing’s Toronto and Montréal flights between April 14 and 18, 2018 stemmed, in large part, from intense weather, including an ice storm. Sunwing correctly argues that it cannot be held accountable for such extraordinary weather events. It is, however, accountable for the way it deals with those events and, specifically, for whether it respects the provisions set out in its own tariffs regarding passengers’ entitlements in relation to flight delays; tarmac delays; and lost, damaged or delayed baggage.

[10] Despite the extraordinary weather events and the request from the Greater Toronto Airports Authority (GTAA) to reduce operations, Sunwing sought to maintain its normal schedule of flights rather than to cancel or reschedule certain flights. Whatever its motivation, this operational decision clearly contributed to domino effects across Sunwing’s flights and, in any event, in no way relieves Sunwing of its responsibility to fulfill its tariff obligations as passengers’ travel was disrupted.

[11] Sunwing blames the failure of Swissport Canada Inc. (Swissport), its ground handling agent, for some of the issues that were experienced by passengers on the dates in question. The evidence confirms that Swissport’s service delivery was inadequate, in part due to labour issues, but both the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) and, in the case of scheduled international services, the carrier’s own tariff hold the carrier responsible for the actions of its agents [Rule 15(3)(e) of Sunwing’s Scheduled International Tariff]. This is consistent with previous findings by the Agency regarding carrier responsibility for its agents (for example, see Decision No. A-2017-194). Non-performance by a carrier’s agent does not excuse a carrier from its failure to satisfy the obligations established in its tariff.

[12] The Agency will first address the flights where Sunwing’s Scheduled International Tariff applies, followed by the flights where its Non-Scheduled International Tariff applies.

Scheduled Flights

Flight Delays

[13] The Inquiry Officer’s report indicates that 77 Sunwing flights were delayed by more than 4 hours. For a delay that exceeds 4 hours, Sunwing’s tariff states that the carrier will provide the passengers with a meal voucher [Rule 16(a) of the Scheduled International Tariff]. The Inquiry Officer’s report indicates that some, but not all, passengers received meal vouchers.

[14] The Inquiry Officer identified 43 flights for which the delays were more than 8 hours, where passengers were either starting their trip at the Toronto Airport or the Montréal Airport or where passengers were at their destination and may have required an overnight stay. For a delay of more than 8 hours that includes an overnight stay, Sunwing’s Scheduled International Tariff states that the carrier will pay for an overnight hotel stay and “airport transfers” for passengers “who did not start their travel at that airport” [Rule 16(b) of the Scheduled International Tariff]. The Inquiry Officer’s report indicates that some individuals were offered hotels at destination but that hotels were not consistently offered to all passengers at destination.

[15] Therefore, the Agency finds, on a preliminary basis, that Sunwing did not properly apply Rules 16(a) and (b) of its Scheduled International Tariff for some passengers.

Rerouting Options

[16] Under Rule 15(3)(a) of the Scheduled International Tariff, in the case of “an Advance Flight Departure, a flight delay or [,] a flight cancellation without reasonable notice, the Carrier will take into account all the circumstances of the case as known to it and will provide the Passenger with the option of accepting one of the following remedial choices”:

reimbursement of the total ticket price if they decide to no longer travel, or

transportation to the destination, at the earliest opportunity, at no additional cost.

[17] No specific time period is identified for when these rights take effect in the case of a delay. With respect to the option to travel at no additional cost, under Rule 15(3)(b), the carrier will consider:

available transportation services, including services offered by interline, code sharing and other affiliated partners and, if necessary, other non-affiliated Carriers; and

the circumstances of the Passenger, as known to it, including any factors which impact upon the importance of timely arrival at destination.

[18] The Inquiry Officer’s report indicates that Sunwing did not cancel any of its flights. In its response to one of the interrogatories, Sunwing explains that it did not consider rerouting any of the delayed passengers as, in its view, “this would not have been a workable option” due to the large volume of flights impacted and the lack of available seats due to cancellations by other airlines. The Agency notes, however, that this explanation about reprotection does not apply with respect to the flights to and from the Montréal Airport where the circumstances were different. In addition, Sunwing states that it did offer and pay out full or partial refunds for rolling delays or unused legs of travel. However, the Inquiry Officer’s report indicates that there was miscommunication of the carrier’s cancellation and refund policy; specifically, not all passengers were clearly informed of the option of no longer travelling and receiving reimbursement of the ticket price instead.

[19] Given that Sunwing did not provide passengers with the option of being reprotected and that the carrier’s cancellation and refund policy was miscommunicated in some cases, the Agency finds, on a preliminary basis, that Sunwing did not properly apply Rules 15(3)(a) and (b) of its Scheduled International Tariff.

Baggage

[20] Rule 11 of Sunwing’s Scheduled International Tariff incorporates by reference the Montreal Convention, which requires the carrier to provide for expenses for lost, damaged or delayed baggage up to the liability limits set out in the Montreal Convention, unless there is “[…] inherent defect, quality or vice of the baggage” (Article 17 of the Montreal Convention).

[21] Passengers may be entitled to more than the liability limits of the Montreal Convention in certain cases, for example, where the damage results “[…] from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result […]” (Article 22 of the Montreal Convention).

[22] The record shows that passengers of flights that were delayed in Montréal and flights that were delayed in Toronto had lost, damaged or delayed baggage. Sunwing has provided evidence that some, but not all, of those passengers were compensated for that lost, damaged or delayed baggage. Each individual passenger complaint must be assessed separately to determine whether Sunwing has properly applied the terms and conditions set out in its tariff with respect to the claim made. Sunwing is required to apply the terms and conditions set out in its tariff regarding baggage claims made under the Montreal Convention.

Communication

[23] According to Rule 15(1)(f) of Sunwing’s Scheduled International Tariff:

Passengers have a right to information on flight times and schedule changes. In the event of a delay, an advanced flight departure or schedule change the Carrier will make reasonable efforts to inform the Passengers of delays, proposed advanced flight departures and schedule changes, and, to the extent possible, the reasons for them.

[24] The Agency finds that the most reasonable interpretation of “delay” for the purposes of this provision includes “tarmac delay,” given that passengers’ arrival at their destination is affected whether delays occur while passengers are in the terminal or on the aircraft.

[25] As detailed in the Inquiry Officer’s report, there is evidence of widespread breakdowns in communication to passengers from Sunwing and Swissport, its agent, in that all passengers contacted as part of the inquiry experienced communication problems with Sunwing. Consequently, the Agency finds, on a preliminary basis, that Sunwing did not “take reasonable steps” to update passengers or communicate with them in relation to flight times and schedule changes, such as by sending text message updates to impacted passengers or keeping its website up to date, and thus, that Sunwing did not properly apply, in all instances, Rule 15(1)(f) of its Scheduled International Tariff.

[26] Furthermore, Rule 15(4)(b) of Sunwing’s Scheduled International Tariff requires the carrier to provide passengers with regular updates on the status of lost or delayed baggage. Based on the widespread communication issues in relation to baggage outlined in the Inquiry Officer’s report, including with respect to lost or delayed baggage, the Agency finds, on a preliminary basis, that Sunwing did not properly apply Rule 15(4)(b) of its Scheduled International Tariff.

Tarmac Delays

[27] Rule 16(c) of Sunwing’s Scheduled International Tariff states that the carrier will offer drinks and snacks during a delay on the tarmac “if it is safe, practical and timely to do so”. The tariff does not specify the timeframe within which these drinks and snacks should be offered. In its responses to the interrogatories, Sunwing argued that no food or drink service could be provided “during minimal tarmac delays due to safety concerns”, and in several cases, food was not offered to all passengers due to limited supplies.

[28] Rule 16(c) also states that if the tarmac delay exceeds 90 minutes, the carrier will offer passengers the option of disembarking “if safe and practical to do so”. 15 scheduled flights have been identified, all at the Toronto Airport, where passengers were delayed on the tarmac for more than 90 minutes without Sunwing providing the passengers the possibility of disembarking.Footnote 1 No such tarmac delays occurred at the Montréal Airport (Appendix C).

[29] In its interrogatories, the Agency asked Sunwing to provide additional information regarding the flights that experienced tarmac delays. Sunwing disputes that 6 of the 15 flights at issue were delayed on the tarmac for more than 90 minutes. In 8 of the remaining 9 cases, Sunwing identifies a lack of Swissport’s support on the ramp as one of the reasons why passengers on the aircraft could not disembark. For the remaining flight (Flight No. WG302), Sunwing states that the “pilot queried passengers who stated that they wished to continue to try and take-off”.

[30] The method for calculating a tarmac delay is not defined in Sunwing’s Scheduled International Tariff. The Agency finds that the period of a tarmac delay should be calculated from the time that the aircraft doors are closed until take-off or disembarkation, and from the moment the wheels touch the ground until disembarkation on arrival. This approach most accurately reflects the passenger’s experience of a tarmac delay and their inability to disembark the aircraft. On this basis, the Agency finds that the length of the tarmac delay exceeded 90 minutes on all 15 flights.

[31] The Agency finds that in 14 of the 15 flights, passengers were not provided the opportunity to disembark. While passengers on Flight No. WG302 were provided the opportunity to disembark, the Inquiry Officer reports that the offer was not made until several hours after the 90-minute mark had passed.

[32] Therefore, the Agency finds, on a preliminary basis, that Sunwing did not properly apply Rule 16(c) of its Scheduled International Tariff.

Non-scheduled flights

[33] Four of the flights within the scope of the inquiry were non-scheduled: Flight No. WG201, Flight No. WG783, Flight No. WG784 and Flight No. WG785. In general, Sunwing’s tariff provisions for non-scheduled services are very similar to the tariff provisions set out in its Scheduled International Tariff, which were discussed above, with respect to baggage. As these flights are non-scheduled, delays are not addressed in the Non-Scheduled International Tariff, except through incorporation by reference of the Montreal Convention. Tarmac delays are also not addressed in the Non-Scheduled International Tariff.

[34] The Agency notes that the Montreal Convention does not distinguish between scheduled and non-scheduled services. As a result, the carrier may remain liable for expenses caused by delay in the same manner as set out in the earlier discussion of the Montreal Convention with respect to its scheduled services. This appears to have been the practice followed by Sunwing, as it stated in its response to one of the interrogatories that it did not handle expenses for baggage and passenger delay any differently for the non-scheduled flights.

DIRECTION TO SHOW CAUSE

[35] The Agency finds, on a preliminary basis, that, in responding to the flight disruptions that occurred between April 14 and 18, 2018 at the Toronto Airport and the Montréal Airport, Sunwing did not properly apply Rules 15(1)(f), 15(3)(a), 15(3)(b), 15(4)(b), 16(a), 16(b) and 16(c) of its Scheduled International Tariff, as required by subsection 110(4) of the ATR.

[36] The Agency provides Sunwing with the opportunity to show cause why the Agency should not finalize these findings.

[37] Sunwing will have until February 5, 2019 to provide its response to this Show Cause to the Agency. The Agency will publish Sunwing's response to the Show Cause on its webstie. The passengers with complaints within the scope of the inquiry will have an opportunity to reply to Sunwing’s response and must provide their comments to the Agency by February 12, 2019. The Agency will then render its final decision in this case.

Sunwing’s International Scheduled Tariff

TARMAC DELAY

Rule 16(c) If the Passenger is already on the aircraft when a delay occurs, the Carrier will offer drinks and snacks if it is safe, practical and timely to do so. If the delay exceeds 90 minutes and circumstances permit, the Carrier will offer Passengers the option of disembarking from the aircraft until it is time to depart if safe and practical to do so.

15(1)(f) Passengers have a right to information on flight times and schedule changes. In the event of a delay, an advanced flight departure or schedule change the Carrier will make reasonable efforts to inform the Passengers of delays, proposed advanced flight departures and schedule changes, and, to the extent possible, the reasons for them.

FLIGHT DELAY/CANCELLATION

Rule 15 (3) Advance Departures, Delays or Cancellations

(a) If the Passenger's journey is interrupted by an Advance Flight Departure, a flight delay, or a flight cancellation without reasonable notice, the Carrier will take into account all the circumstances of the case as known to it and will provide the Passenger with the option of accepting one of the following remedial choices:

(i) Reimbursement of the total price of the Ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part of parts already made if they no longer serve any purpose in relation to the Passengers original travel plan, together with, when relevant, transportation to the Passengers point of origin, at the earliest opportunity, at no additional cost; or

(ii) Transportation to the passenger's intended destination at the earliest opportunity, at no additional cost

(b) When determining the transportation service to be offered, the Carrier will consider:

(i) Available transportation services, including services offered by interline, code sharing and other affiliated partners and, if necessary, other non-affiliated Carriers; and

(ii) the circumstances of the Passenger, as known to it, including any factors which impact upon the importance of timely arrival at destination.

Rule 15(3) (also see 15(3)(a)(i) under rerouting heading above)

(c) Having taken all the known circumstances into consideration, the Carrier will take all measures that can reasonably be required to avoid or mitigate the damages caused by the Advanced Flight Departure, delay or cancellation. Where a passenger nevertheless incurs expense as a result of the flight departure, delay or cancellation, the Carrier will offer a cash payment or travel credit, the choice of which will be at the Passenger's discretion.

(d) When determining the amount of the offered cash payment or travel credit, the Carrier will consider all circumstances of the case, including any expenses which the Passenger, acting reasonably, may have incurred as a result of the Advance Flight Departure, delay or cancellation, as for example, costs incurred for accommodation, meals or additional transportation. The Carrier will set the amount of compensation offered with a view to reimbursing the Passenger for all such reasonable expenses.

(e) The Carrier shall not be liable for any damages, costs, losses or expenses occasioned by Advanced Flight Departures, delays or cancellations if the Carrier proves it, and its employees and agents, took all measures that could reasonably be required to avoid the damage or if it was impossible for the Carrier and its employees or agents to take such measures;

(f) Any Passenger seeking reimbursement for expenses resulting from Advance Flight Departure, delays or cancellations must provide the Carrier with: (i) written notice of his or her claim, (ii) particulars of the expenses for which reimbursement is sought, and (iii) receipts or other documents establishing to the reasonable satisfaction of the Carrier that the expenses were incurred; and

(g) The Carrier may refuse or decline any claim, in whole or in part, if:

i) the Passenger has failed or declined to provide proof or particulars establishing, to the reasonable satisfaction of the Carrier, that the expenses claimed were incurred by the Passenger and resulted from an Advanced Flight Departure, delay or cancellations for which compensation is available under this Rule 15; or

(ii) the expenses for which reimbursement is claimed, or any portion thereof, are not reasonable or did not result from the delay or advanced flight departure, delay or flight cancellations as determined by the Carrier, acting reasonably

Rule 8A

In the reasonable exercise of the Carrier’s discretion, the Carrier may refuse to carry a Passenger or a Passenger’s Baggage on the Carrier’s flights, if the Carrier has previously notified the Passenger in writing of prohibited conduct as mentioned in (C) (iv) below. The Carrier may also refuse to carry the Passenger or the Passenger’s Baggage if one of the following has occurred, or the Carrier has reason to believe will occur, in which case there will be no refund of the Passenger’s Ticket:

(i)Such action is necessary in order to comply with any applicable national or international regulations; or to comply with any government request for emergency transportation in connection with national defence, or wherever such action is necessary or advisable by reason of weather or other conditions beyond its control (including but without limitations: acts of God, Event of Force Majeure, strikes, civil commotion, embargoes, wars, hostilities or disturbances) actual, threatened or reported;

…

from tariff definitions: Event of Force Majeure means an event, the cause or causes of which are not attributable to the wilful misconduct or gross negligence of the Carrier, including, but not limited to (i) earthquake, flood, hurricane, explosion, fire, storm, epidemic, other acts of God or public enemies, war, national emergency, invasion, insurrection, riots, strikes, picketing, boycott, lockouts or other civil disturbances, (ii) interruption of flying facilities, navigational aids or other services, (iii) any laws, rules, proclamations, regulations, orders, declarations, interruptions or requirements of or interference by any government or governmental agency or official thereof, (iv) inability to procure materials, accessories, equipment or parts from suppliers, mechanical failure to the aircraft or any part thereof, damage, destruction or loss of use of an aircraft, confiscation, nationalization, seizure, detention, theft or hijacking of an aircraft, or (v) any other cause or circumstances whether similar or dissimilar, seen or unforeseen, which the Carrier is unable to overcome by the exercise of reasonable diligence and at a reasonable cost;

Rule 10. Limitation of Liability –Passengers

(a) For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

Rule 16 Traveller's rights

(a) If a flight is delayed and the delay between the scheduled departure of the flight and the actual departure of the flight exceeds 4 hours, the Carrier will provided (sic) the Passenger with a meal voucher.

16(b) If a flight is delayed by more than 8 hours and the delay involves an overnight stay, the Carrier will pay for overnight hotel stay and airport transfers for Passengers who did not start their travel at that airport.

15(1)(f) Passengers have a right to information on flight times and schedule changes. In the event of a delay, an advanced flight departure or schedule change the Carrier will make reasonable efforts to inform the Passengers of delays, proposed advanced flight departures and schedule changes, and, to the extent possible, the reasons for them.

LOST, DAMAGED OR DELAYED BAGGAGE

Rule 11. Limitation of Liability for Baggage or Goods

(a) For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

…

(c) For travel governed by either the Montreal Convention or the Warsaw Convention

(i) In no case shall the Carrier’s liability exceed the actual loss suffered by the Passenger. All claims are subject to adequate proof of amount of loss.

(ii) In the case of damage or partial loss, the Person entitled to delivery must complain to the Carrier forthwith after discovery of the damage or partial loss, and, at the latest, within seven days from the date of receipt of the Baggage. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the Baggage has been placed at his disposal. In the case of loss, the complaint must be made at the latest within 30 days from the date the Baggage should have been delivered. The Passenger must notify the Carrier immediately upon arrival in the case of missing checked-in Baggage. Every complaint, whether for loss, partial loss, damage or delay, must be made in writing and must be dispatched within the times aforesaid. Failing complaint within the times aforesaid, no action shall lie against the Carrier.

(note: other baggage liability rules under Rule 11(c)):

(iii) All Baggage must be suitably identified externally and packed in suitcases or in similar containers in order to ensure safe and convenient carriage with ordinary care and handling. Fragile or perishable articles, including medication or medical devices money, jewellery, silverware, laptop computers, personal audio/video devices, negotiable documents, securities, samples of business documents or other valuables (other than articles of clothing) shall not be accepted as checked Baggage. Any such items declared or found in checked Baggage are subject to removal prior to the Baggage in question being accepted for carriage by the Carrier.

(iv) The Carrier shall not be liable for damage to fragile, valuable or perishable items where such damage is the result of the inherent defect, quality or vice of the item in question. Unsuitably or inadequately packed items will be accepted at the Carrier's discretion and, where accepted a limited release tag will be issued recording all the Baggage deficiencies of such checked Baggage, compensation may be denied as a result of the afore-mentioned factors. The Carrier assumes liability for the delay in delivery of any perishable items accepted as checked Baggage in the event it has failed to take all reasonable measures to avoid such delay.

(v) No claim shall be eligible under this Rule unless the Person presents a valid Baggage Tag issued by the Carrier for the lost, damaged or delayed bag.

(vi) Notwithstanding paragraphs a) and b) of this rule, in the case of damaged Baggage, the Carrier’s liability shall be limited to repairing the damaged bag, paying the cost of the repair, if such were pre-approved by the Carrier on the basis of an estimate or replacing the bag if it is not repairable.

(vii) In the case of unclaimed Baggage which cannot be identified, the Carrier will hold the Baggage and items therein for up to 30 days, subsequent to which it will dispose of the bag and its contents as it sees fit. If the Baggage can be identified by a name, address, telephone number, the Carrier will make reasonable efforts to inform the Passenger that his/her bag is in the possession of the Carrier and that he/she should make arrangements at his/her own cost and expense for collecting the said Baggage within 30 days after which time the Carrier will dispose of the bag and its contents as it sees fit.

(viii) The Carrier is not liable for any damages directly and solely arising out of its compliance with laws, government regulations, order or requirements or from the failure of the Passenger to comply with same or out of any cost beyond the Carrier’s control.

(ix) The Carrier is not liable for damage to the Passenger’s Baggage caused by contents in the Passenger’s Baggage. Any Passenger whose property cause damage to another Passenger’s Baggage or to the property of the Carrier will compensate the Carrier for all the losses and expenses it incurs as a result of the above.

(x) In the event of loss or partial loss the Passenger must provide adequate proof of loss when filing a claim. The Carrier may disallow any and all claims when the Passenger fails to provide the above referred adequate proof of loss.

Rule 15(4)

a) The Carrier cannot guarantee that the Passenger's Baggage will be carried on the flight if sufficient space is not available as determined by the Carrier.

b) Passengers have a right to retrieve their luggage quickly. If the luggage does not arrive on the same flight as the Passenger, the Carrier will take steps to deliver the luggage to the Passenger’s residence/hotel as soon as possible. The Carrier will take steps to inform the Passenger on the status of the luggage. Compensation will be provided as set out herein.

c) Notwithstanding the foregoing, Passengers whose Baggage does not arrive on the same flight as the Passenger will be entitled to reimbursement from the Carrier for reasonable expenses incurred as a result of the Baggage delay, subject to the following conditions:

(i) The Carrier shall not be liable for any damages, costs, losses or expenses occasioned by delays in the delivery of Baggage if the Carrier proves it, and its employees and agents, took all measures that could reasonably be required to avoid the damage or it was impossible for the Carrier and it employees or agents to take such measures;

(ii) In order to assist the Carrier in commencing the tracing of the Baggage in question, the Passenger must report the delayed Baggage to the Carrier prior to departing the airport;

(iii) The Passenger must provide the Carrier with (a) written notice of any claim for reimbursement within 21 days of the date on which the Baggage was placed at the Passenger’s disposal, or in the case of loss within 21 days of the date on which the Baggage should have been placed at the Passenger’s disposal; (b) particulars of the expenses for which reimbursement is sought; and (c) original receipts or other documents establishing to the reasonable satisfaction of the Carrier that the expenses were incurred;

(iv) The liability of the Carrier in the case of lost or delayed Baggage shall not exceed 1,131 SDR (the “basic Carrier liability” which is the approximate Canada dollar equivalent of CAD$2,000, at the time of the filing of this Tariff, for each Passenger).

Sunwing’s Non-Scheduled International Tariff

FLIGHT DELAY/CANCELLATION

Rule 6 (E)

Times shown in charter contracts, passenger tickets or elsewhere are not guaranteed and form no part of the charter contract. Flight times are subject to change without notice.

Rule 15 Rule 15. Passenger Re-routing

The carrier is not liable to any passenger when he/she misses his/her flight. In these instances, no other flight alternative is offered by the carrier to the passenger.

(However, see Rule 6(C)(ii)(also referred to below):

Rule 6 (C)

(a) Subject to the limits of liability contained in this tariff the carrier will be exempted from liability due to any failure to perform any of its obligations under the carrier's charter agreement arising from:

i) Labour disputes or strikes, whether of the carrier's employees or of others upon whom the carrier relies for the fulfillment of the charter agreement, and;

ii) "Force Majeure", or any other causes not attributable to the willful misconduct of the carrier including accidents to, or failure of aircraft or any part thereof, of any machinery or apparatus used in connection therewith. Refusal of any Government or public body on whatsoever ground to grant the carrier any clearance, licence, right or other permission necessary to the performance of the carrier's charter agreement is deemed to be included in the term "Force Majeure". Provided, always that in the event of such failure, the carrier will use its best efforts to fulfil its obligations including the provisions of alternate means of transport."

Rule 8 Refunds

(a) Application for refund shall be made to the carrier or its duly authorized Agent.

(b) If a portion of the agreed transportation has been completed, refund will be the difference between the rates and charges paid and the rates and charges applicable to that portion of the agreed transportation completed, less any applicable cancellation charges, as specified in this tariff.

Rule 14 Tickets

(iii) Tickets &/or e-tickets are valid for carriage only on the flights and dates shown thereon and are not refundable by the carrier to the passenger, except as provided by applicable fare conditions.

Exemption from Liability

Rule 6 (C)

(a) Subject to the limits of liability contained in this tariff the carrier will be exempted from liability due to any failure to perform any of its obligations under the carrier's charter agreement arising from:

(c) Labour disputes or strikes, whether of the carrier's employees or of others upon whom the carrier relies for the fulfillment of the charter agreement, and;

(d) "Force Majeure", or any other causes not attributable to the willful misconduct of the carrier including accidents to, or failure of aircraft or any part thereof, of any machinery or apparatus used in connection therewith. Refusal of any Government or public body on whatsoever ground to grant the carrier any clearance, licence, right or other permission necessary to the performance of the carrier's charter agreement is deemed to be included in the term "Force Majeure". Provided, always that in the event of such failure, the carrier will use its best efforts to fulfil its obligations including the provisions of alternate means of transport."

LOST, DAMAGED OR DELAYED BAGGAGE

Rule 10. Limitation of Liability for Baggage or Goods and Excess Valuation Charges

For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

…

For travel governed by either the Montreal Convention or the Warsaw Convention

If the passenger or charterer does elect to declare a higher value an additional charge shall be payable and the carrier's liability will not exceed the higher value declared. The additional charge shall be calculated as follows:

(e) The amount of the carrier's liability calculated in accordance with the parts of this rule set out above shall be referred to as "basic carrier liability";

(f) No charge shall be payable on that part of the declared value which does not exceed basic carrier liability;

(g) For that part of the declared value which does exceed basic carrier liability, a charge shall be payable at the rate of CAD 0.50 cents for each CAD $100.00 or fraction thereof

i) Whether passenger or charterer declares value or not, in no case shall the carrier's liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.

ii) In the case of damage or partial loss, the person entitled to delivery must complain to the carrier forthwith after discovery of the damage or partial loss, and, at the latest, within seven days form the date of receipt of the baggage. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage has been placed at his disposal. In the case of loss, the complaint must be made at the latest within 30 days from the date the baggage should have been delivered. The passenger must notify the carrier immediately upon arrival in the case of missing checked-in baggage. Every complaint, whether for loss, partial loss , damage or delay, must be made in writing and must be dispatched within the times aforesaid. Failing complaint within the times aforesaid, no action shall lie against the carrier.

iii) All baggage must be suitably identified externally and packed in suitcases or in similar containers in order to ensure safe and convenient carriage with ordinary care and handling. Fragile or perishable articles, including medication or medical devices, money, jewelry, silverware, laptop computers, personal audio/video devices, negotiable documents, securities, samples of business or other valuables (other than articles of clothing) shall not be accepted as checked baggage. Any such items declared or found in checked baggage are subject to removal prior to the baggage in question being accepted for carriage by the Carrier.

The Carrier shall not be liable for damage to fragile, valuable or perishable items where such damage is the result of the inherent defect, quality or vice of the item in question. Unsuitably or inadequately packed items will be accepted at the Carrier's discretion and, where accepted a limited release tag will be issued recording all the baggage deficiencies of such checked baggage, compensation may be denied as a result of the afore-mentioned factors. The Carrier assumes liability for the delay in delivery of any perishable items accepted as checked baggage in the event it has failed to take all reasonable measures to avoid such delay.

iv) No claim shall be eligible under this Rule unless the person presents a valid baggage tag issued by the Carrier for the lost, damaged or delayed bag.

v) Notwithstanding paragraphs a) & b) of this rule, in the case of damaged baggage, the carrier's liability shall be limited to repairing the damaged bag, paying the cost of the repair, if such were pre-approved by the Carrier on the basis of an estimate or replacing the bag if it is not repairable.

vi) In the case of unclaimed baggage which cannot be identified, the carrier will hold the baggage and items therein for up to 30 days, subsequent to which it will dispose of the bag and its contents as it sees fit (sic) If the baggage can be identified by a name, address, telephone number, the Carrier will make reasonable efforts to inform the passenger that his/her bag is in the possession of the Carrier and that he/she should make arrangements at his/her own cost and expense for collecting the said baggage within 30 days after which time the Carrier will dispose of the bag and its contents as it sees fit.

vii) In the event of loss or partial loss the passenger must submit receipts when filing a claim. The Carrier may disallow any and all claims when the passenger fails to provide proof of loss in the form of receipts of purchase.

Rule 7 (f)

The following items will be considered as one piece of baggage included in the allowance and will be subject to a limited liability evidenced by a Limited Release Tag affixed to the article at the time of check-in:

WG031 was an arrival into Pearson, no gates were available to offload passengers due to the collapse of the Swissport support on the ramp.

WG218

Departure

4 h 50

X

WG218 was delayed due to GTAA deicing fluid shortage. Once it was determined that the flight could not operate due to curfew restriction at destination airport, no gates were available for passengers to deplane due to the collapse of the Swissport support on the ramp.

WG271

Departure

2 h 20

X

WG271 the tarmac delay arose as a result of no gates being available to offload passengers due to the collapse of the Swissport support on the ramp.

WG302 pilot queried passengers who stated that they wished to continue to try and take-off.

WG406

Departure

1 h 44

Yes – 27 min

N/A

WG535

Departure

2 h 17

Yes – 37 min

N/A

WG627

Arrival

2 h 28

X

WG627 was an arrival into Pearson, no gates were available to offload passengers due to the collapse of the Swissport support on the ramp.

WG685

Arrival

2 h 29

X

WG685 was an arrival into Pearson, no gates were available to offload passengers due to the collapse of the Swissport support on the ramp.

WG706

Departure

2 h 14

Yes – 29 min

N/A

WG714

Departure

2 h 35

Yes – 47 min

N/A

WG715 (reviewed by the Inquiry Officer in the report)

Arrival

6 h 14

X

WG715 was an arrival into Pearson, no gates were available to offload passengers due to the collapse of the Swissport support on the ramp.

WG731

Arrival

1 h 59

X

WG731 was an arrival into Pearson, no gates were available to offload passengers due to the collapse of the Swissport support on the ramp.

WG752

Departure

2 h 05

Yes – two tarmac delays, both under 90 minutes

WG752 returned to the gate for maintenance, passengers were on board for 1 hour and 20 minutes, then deplaned. Time from second pushback to take-off was 1 hour and 7 minutes.Footnote 5

WG781

Arrival

4 h 45

X

WG781 was an arrival into Pearson, no gates were available to offload passengers due to the collapse of the Swissport support on the ramp.

Endnotes

Note 1

The Inquiry Officer’s report indicates that 16 flights were delayed for more than 90 minutes on the tarmac at the Toronto Airport during the time period in question. However, one of these flights was a non-scheduled flight, so therefore, the applicable tariff provision did not apply to that flight. A summary of these 15 flights is located in Appendix C.

This information is taken from Sunwing’s revised response to question 7 of the interrogatories, which applied to each of these flights: “[…] were passengers offered the opportunity to disembark the plane when the delay exceeded 90 minutes. If not, why?

Note: The exact time is not specified in the Inquiry Officer’s report. The bridge was retracted around 5:27 p.m. and disembarkation was offered to the passengers some time between 11 p.m. and 11:21p.m.

Note: There is no mention of the disembarkation in the Inquiry Officer’s report or in Appendix 13 – Tarmac Delays. Rather, Appendix 13 states the following: “Unknown if deplaning was offered during tarmac delay (if applicable).